Complaints about “the law’s delay” long predate Hamlet’s list of “these fardels.” Sometimes the slow pace of Tax Court litigation makes its way onto the list.

Today we have something completely different, and yet the same. The star of the show is Larry A. (“Swing for the Fences”) Campagna, Esq., (see my blogpost “The Great Dissenter – Redivivus,” 9/3/13, for Larry’s story).

I’ll let Judge Alina I. Marshall tell the story, in Gregory M. Fischer & Karen S. Fischer, Docket No. 28718-15, filed 7/12/21. Note the dates; they are important.

“On June 16, 2021 at 4:45 p.m., Larry A. Campagna and Peter A. Lowy, counsel for petitioners, filed a notice of death of counsel for Donovan Hamm. On the same day at 5:35 p.m., Mr. Campagna and Mr. Lowy filed an additional notice of death of counsel for Donovan Hamm. Upon review of each of those filings, it appears to the Court that the notice of death filed June 16, 2021, at 5:35 p.m. is identical to the notice filed at 4:45 p.m. with the exception of Exhibit A attached thereto.” Order, at p. 1.

Refiling an entire document when the first attempt at filing omitted an exhibit or attachment is not uncommon. Scanners jam, papers stick together on a hot, humid day even with air conditioning, and the internet sometimes takes a two-second break.

OK, so Judge AIM orders the first, incomplete filing stricken. No biggie.

Except.

My sources tell me that the late Donovan M. Hamm, Esq., distinguished USVI attorney, died in May of 2019.

Reminds me of Mark Twain’s story of one of the Mississippi sternwheelers on which he served as a “cub” pilot. Twain said the boat was very slow. “For a long time I was on a boat that was so slow we used to forget what year it was we left port in. But of course this was at rare intervals.” And when that same vessel finally sank, it took five years for the owners to get the news.

No, I’ve not taken up paleontology; I’ve discovered how to link to the text of certain orders and opinions, since DAWSON obliterated the links I’d carefully embedded in my blogposts over ten (count ’em, ten) years.

However, the process is laborious, and is no substitute for the pre-DAWSON method that was simplicity personified. My colleague Peter Reilly, CPA, once suggested that I might hire some impecunious undergraduate to figure out how to do an Ezekiel on the dry bones of several thousand blogposts thus afflicted, and do it. I replied I had neither money for the purpose, nor the inclination to undo damage not of my making.

I await the fulfillment of the Genius Baristas’ promise to make orders and opinions searchable without the need to memorize names and docket numbers. It can be done.

See my blogpost “Behind That Curtain,” 7/6/21. I was beyond astonished to discover the role played by a crew of freelance Genius Baristas, operating under the name and style “18F”, in the creation (if that is the correct term) of the DAWSON system, the current Tax Court portal. Were these dudes the authors of DAWSON?

Well, as I said at the conclusion of my blogpost hereinabove-cited, “I think I may have to seek further illumination from Tax Court my own self.” Suiting the action to the word, I sent today, by first-class USPS mail, postage prepaid, the following request to the Clerk.

“I am informed by a representative of Tax Court Public Affairs that I must address requests for information to you. Therefore, I address to you the following requests for information. Please be advised that I will publish your responses in my blog taishofflaw.com in full, without alteration, but with such editorial commentary as I alone see fit.

All terms used herein have their ordinary meanings, except as expressly otherwise herein stated. The singular includes the plural, and each gender includes the others as the context may require.

If any privilege is asserted, state the basis for such assertion with reasonable particularity in each instance.

Concerning the preparation for, and launch, of the current Tax Court DAWSON system (hereinafter, the “system”):

1) Was the system prepared by past or present Tax Court employees?

2) If the system was so prepared, state names and job titles of those employees at the time the system was first prepared, and those still employed as at the date first written at the head hereof.

3) If the system was prepared by persons other than past or present Tax Court employees, state the names and job titles of those persons; if employees, state the name or names of their employer or employers. State whether any such persons are independent contractors, and state any d/b/a used by any of them.

4) Was any contract for preparation and launch of the system awarded as the result of competitive bidding?

5) If the award of any such contract was to be the subject of competitive bidding, provide the text of any request for proposals or solicitation of bids.

6) If no such contract was solicited, why was it not?

7) If any such contract was solicited but not awarded, why was it not?

8) Was any preliminary or “beta” version of the system prepared?

9) If any preliminary or “beta” version of the system was prepared, was it made public?

10) If no such preliminary or “beta” version of the system was prepared, why was it not?

11) If any such preliminary or “beta” version was prepared, but not made generally available to the public, to whom was it shown? State the names and affiliations of all such persons.

12) If any such preliminary or “beta” version was prepared, but not made generally available to the public, what criteria were used to determine to whom it would be shown?

13) If any such preliminary or “beta” version was prepared, but not made generally available to the public, why was it not shown to the public generally?

14) What was the total cost of the system, from preparation to launch?

15) Did any contract entered into provide for payment to be made, in progress payments as the work progressed?

16) Has the entire contract price, or otherwise agreed price, of the system been paid to date?

17) Was any portion of the entire price of the system held back to assure proper completion?

18) Is any preparer of the system obligated in respect of any warranties or guarantees with respect to such preparer’s work or contributions to the system?

19) If any preparer of the system is obligated in respect of any warranties or guarantees with respect to such preparer’s work or contributions to the system, what are the terms of any warranties or guarantees giving rise to such obligation?

20) Is there any ongoing maintenance or repair obligation on the part of any preparer of the system, other than any such warranty or guarantee?

21) If there is any ongoing maintenance or repair obligation on the part of any preparer of the system, other than under the terms of any of such aforesaid warranty or guarantee, what payments have been made, and remain to be paid, if any, in respect thereof?

I reserve the right to submit further requests from time to time and at any time.”

I’ll post any reply I receive in full, without alteration. And make any comments I deem appropriate.

Cain’t hardly wait.

The well-known line from the great tragedy immortalized by a cigar brand gives me the text for Richard C. Mathews, 2021 T. C. Memo. 85, filed 7/8/21.

Richard has more beefs than a McDonald’s, but I’ll only focus on one, because I missed John Hobart Zentmyer, 2017 T. C. Memo. 197, filed 10/4/17, where the same issue was canvassed by HHBJJJIJ, a/k/a His Honor Big Julie Judge Julian I Jacobs, and later affirmed by 9 Cir.

Judge Patrick J. (“Scholar Pat”) Urda has this one, and sends Richard off with a footnote.

“Mr. Mathews also observes that his name was misspelled on the notice of deficiency in that it was addressed to ‘Richard Matthews’ rather than ‘Richard Mathews’ and argues that this error invalidated the notice. We do not believe that this typographical error rises to the level that might call the validity of the notice into question, as the notice was sent to Mr. Mathews’ correct address and was also addressed to his wife, with the correct spelling of their last name. Cf. Zentmyer v. Commissioner, T.C. Memo. 2017-197, at *12 (finding that the taxpayer was a party to the examination despite the misspelling of his name on the Form 4549-A, Income Tax Examination Changes, attached to the notice of deficiency), aff’d, 781 F. App’x 621 (9th Cir. 2019).” 2021 T. C. Memo. 85, at p. 6, footnote 4.

Just yesterday I applauded the bipartisan Congressional initiative (doubtless inspired by you and your predecessors) to require proof of competency and continuing professional education on all PTIN holders; see my blogpost “Drying Up My Sources,” 7/7/21.

Well, Mr. Rettig, you might want to call up your Congressional allies and suggest they add a few of your own coadjutors to the shape-up and brush-up squad. Starting with Paul Warque, whose story Judge Elizabeth A. (“Tex”) Copeland tells in Paul Warque and Marie Warque, 2021 T. C. Sum.  Op. 18, filed 7/8/21.

Now it’s not want of resources that’s the cause of Paul’s difficulties.  “…Mr. Warque had access to many tax law research resources, including Westlaw, that would enable him to research tax laws.” 2021 T. C. Sum. Op. 18, at p. 4.

Paul’s homestead was in Sin City, but his “post of duty” was in Laguna Niguel, CA. Paul asked for a PCS, and was placed on the eligible list twice in the three (count ’em, three) years at issue. He got a TDY hardship for the last year, but it was strictly temporary. If you don’t know what a PCS, or TDY, is, consider yourself lucky. And you’ll still be lucky when I tell you that PCS is “Permanent Change of Station,” and TDY is “Temporary Duty.”

But making the eligible list guaranteed nothing. “Mr. Warque’s approval letter stated: This is to inform you that your hardship application has been approved. Your name has been updated in the Special Programs database…. This does not mean you have a job placement offer at this time. However, you will be considered for future vacancies in your desired post of duty with the status of a hardship eligible.” 2021 T. C. Sum. Op. 18, at pp. 4-5.

Nowise deterred by the conditional mood of such billets doux, Paul deducted his travel expenses, housing and meal expenses, and miscellaneous office supplies he used in NV as unreimbursed employee business expenses, claiming his home base was Sin City and CA was TDY because he reasonably believed he had been approved for transfer.

Judge Tex Copeland shreds that.

“On this record, applying either the test of this Court or that of the Court of Appeals for the Ninth Circuit, we hold that Mr. Warque was not “away from home” within the meaning of section 162(a)(2). Mr. Warque traveled from his personal residence in Las Vegas to his place of employment in Laguna Niguel. Mr. Warque began working in Laguna Niguel…knowing that it was a full-time non temporary position. This situation did not change when he applied for the hardship relocation. The hardship relocation approval letter clearly stated that there was no certainty that his duty station would be changed to Las Vegas. The approval was one of eligibility. The letter clearly stated that there was no guaranty he would be transferred. In fact he was not transferred. There could be no reasonable belief that the Laguna Niguel duty station changed to a temporary one…. Mr. Warque’s tax home for purposes of section 162(a)(2) was his Laguna Niguel place of employment. It was Mr. Warque’s personal preference to maintain a personal residence in Las Vegas. Consequently, the traveling expenses Mr. Warque incurred for mileage, rent, car repair and maintenance, car inspection, and meals were not covered by the exception in section 162(a)(2) and are not deductible.” 2021 T. C. Sum. Op. 18, at p. 13.

Paul also wrote off his office clothes (suitable for nonwork wear, so out), haircuts, “deodorant, mouthwash, and floss.” 2021 T. C. Sum Op. 18, at p. 15. And Paul never showed the office supplies he wrote off were not reimbursable by his employer.

No mention of chops, so maybe there were none.

So why should Commissioner Rettig add Paul to the list?

“In 2009 he began working as a revenue agent for the IRS. His ‘post of duty’ was the IRS examination office in Laguna Niguel, California; it was a permanent, not seasonal, position. Mr. Warque remained employed in this position through the years in issue. He worked in the Tax Exempt and Government Entities examination division. His duties included examining employee pension and retirement plans to determine whether the plans met the qualifications of section 401(a). He was also charged with making ‘discrepancy adjustments,’ which are adjustments to Federal income tax returns to correct a discrepancy between facts developed during an examination of an employer’s pension or retirement plan return and the line items on related income.” 2021 T. C. Memo. 18, at p. 3. (Footnote omitted).

Cross-training always helps.

His elaborately-nuanced prose delighted me as a young aspirant on The Hill Far Above. I remember putting on those judicial robes when I sat on the Moot Court Board too many years ago, wishing I could be the real thing, and write like that, someday.

Ah, our youthful follies and dreams. But Big Ben Cardozo (that’s Benjamin Nathan Cardozo, first on Our Fair State’s highest court, and later a luminary amongst the Supremes) is still my hero, as today I recall his famous remark in People v. Defore, 242 N. Y. 13, at p. 21 (1926). “There has been no blinking the consequences. The criminal is to go free because the constable has blundered.”

This is what Judge Holmes pointed out when Tax Court engraved Graev on every man-made chop, wheresoever situated. See my blogpost “Stir, Baby, Stir – That Silt,” 12/20/17.

Judge Gale is in line with the well-settled (I had almost said well-silted) precedent in Dustin S. Whitfield, Docket No. 6546-19S, filed 7/8/21. IRS moved to toss Dustin back in March for non-prosecution, after the Standing Pretrial Order has issued last November, and Dustin did nothing.

Judge Gale takes up the story.

“During the period after this case was set for trial, respondent’s counsel made multiple attempts to contact petitioner by letter and by telephone in order to attempt to resolve this case or prepare it for trial. However, petitioner has not responded to respondent’s counsel’s repeated attempts at communication. Consequently, the parties have not filed a status report or a stipulation of facts. Nor has petitioner filed a pretrial memorandum or motion to dismiss, or any proposed trial exhibits.” Order, at p. 2. (Footnote omitted, but it says IRS tried letters and phonecalls, and got nothing).

And Judge Gale gives us the usual “somber reasoning and copious citation of precedent” about “clear record of delay” and “contumacious conduct.” Order, at p. 3. With waste of IRS resources thrown in.

I note Dustin failed to report $172 of income, and that’s enough to sustain the presumption of correctness for the whole $7444 deficiency. Dustin disputed other parts of the deficiency in his petition, but not the $172.

“Moreover, a notice of deficiency alone may satisfy the Commissioner’s evidentiary burden if it indicates that a third party has paid the taxpayer the amount in question and reported the payment to the Commissioner. The notice of deficiency in this case identifies the name of a third-party payor that evidently reported the payment to the Commissioner. The Commissioner’s burden of production with respect to the $172 payment therefore would be satisfied even if the Petition could be construed to dispute the unreported income determination. The presumption of correctness thus attaches to the notice of deficiency.” Order, at p. 5.

But Dustin dodges the Section 6662(a) chop, even though he never challenged it in his petition.

“While the petition in this case does not explicitly assign error to respondent’s penalty determination, it does assign error to other adjustments in the notice of deficiency (including respondent’s disallowance of relatively large refundable credits), and it further alleges that petitioner should have no tax liability for the year at issue. A petition prepared without the assistance of counsel, as in this case, should be liberally construed. As noted above, section 6662(a) imposes a penalty only in cases involving an underpayment of tax. Petitioner thus could not be liable for such a penalty if he were to prevail on his claim that, after correction of the disputed adjustments in the notice of deficiency, he would have no tax liability for the year at issue. Accordingly, in view of petitioner’s pro se status, we conclude that the Petition adequately assigns error to the penalty determination. We therefore must determine whether respondent has satisfied his burden of production with respect thereto.” Order, at p. 6 (Citation omitted, but see my blogpost “Too Late But Still Timely,” 3/28/12, for the indulgence to pro se pleadings).

IRS has only the Michael Corleone gambit, so Dustin walks on the chop.

No blinking the consequences.

I see there’s a bipartisan bill in Congress to regulate return preparers, requiring minimum competency, continuing education, and giving IRS the right to strip incompetents and fraudsters of their PTINs.

That’s good news for the public, especially those whom I have heretofore blogged, who were examined, assessed deficiencies and chops, and had to appeal the various mulcts, to which their larcenous preparers had subjected them, to the good offices of US Tax Court.

It’s bad news for this blogger, as the victims of the swindler-preparers provided good blogfodder. Hopefully, the statute, if enacted, will open a vista of the unPTINed appealing their ousters. But I doubt Congress will bestow jurisdiction thereover upon US Tax Court.

I often wondered why petitioners paid up in full, rather than paying a deposit per Rev. Proc. 2015-18. Perhaps the ambiguity in Rev. Proc. 2015-18, Section 4.05, subdivisions (1) and (2), raises a concern that the issue that a post-petition but pre-motion or pre-trial deposit will not serve to stay Section 7485 collection.

Alternatively, making the deposit will stop accrual of interest in any case. And we’ve seen any number of cases where the inevitable delay in Tax Court litigation causes interest to exceed deficiency, with Section 6404(h) relief a mere Band-aid for an amputation.

But keeping the case alive by cutting off interest entails a further risk: IRS can assert an increased deficiency by way of amending the answer, if they deem that they can sustain BoP on the excess. Payment in full after a SNOD, barring fraud, eliminates that possibility.

I thought Ch J Maurice B (“Mighty Mo”) Foley had cured himself of the pathetic fallacy, calling a person a “power of attorney.” “Unadmitted representative” is correct, per Form 2848, Power of Attorney and Declaration of Representative. The Power of Attorney itself is either a piece of paper or a concatenation of electrons, unless the Form be tattooed on the person, like Sir A. P. Herbert’s check for payment of tax written on a cow.

But he’s back at it in Lauris C. Campbell, Docket No. 1770-21, filed 7/7/21, wherein he states that the petition “…had been signed only by petitioner’s daughter and power of attorney, Desrene Freeman.” Order, at p.1.

Desrene gets next friended, based upon “…documentation establishing petitioner’s medical condition and resultant incompetence independently to pursue this case.” Order, at p.1.

Might be nice to have a list of the documentation (without particulars, of course) to guide other self-representeds in similar circumstances.

Earl Derr Biggers, crafter of the now-contemned Charlie Chan detective series of novels and films, thus entitled one of his novels.

And for those of us who marveled at the launch of DAWSON, ostensibly untouched by human hands (so far as we could tell), and, like Minerva, sprung fully-armed from the brain (if that is the correct term) of some unknown Jupiter, we now can look behind that curtain.

The “blessed communion, fellowship divine” that created this abomination, and foisted it on an unsuspecting public that never did it any harm, was revealed last month.

The “onlie begetter” of this schambolic schemozzle is an outfit mysteriously yclept “18F.”

Sounds rather like James Bond’s off-duty hangout. Or maybe a conspiracy theorist’s delight.

Howbeit, the story, or so much of it as “18F” chooses to make public, can be found under the breath-bereaving title “Improving the way the U.S. Tax Court engages with the public,” by Andrew Dunkman, Mark Mayer, Jessica Marine, Mike Marcotte, and Vicki McFadden, under date of June 15, 2021.

Exactly who these Illuminati are, how they insinuated themselves into the cockpit, and what they meant to do before now and mean to do hereafter (if anything), to “improve the way the US Tax Court engages with the public,” is somewhat obscure.

As is what qualifications these Genius Baristas have, and what courtroom experience they may have (other than pleading to the odd traffic ticket).

They sure haven’t made it possible to recover opinions or orders, or to search the Tax Court database by word.

In any case, with “improvements” like these, we don’t need destruction.

I think I may have to seek further illumination from Tax Court my own self.

And so am I.